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Nairn v. National Railroad Passenger Corp.

decided: January 20, 1988.


Appeal from a judgment of the United States District Court for the District of Connecticut (Eginton, J.), rendered after a jury trial, awarding plaintiff $765,000 in damages for a back injury caused by the defendant's negligence. Vacated and remanded for a new trial on the issue of damages.

Lumbard, Kearse and Altimari, Circuit Judges.

Author: Altimari

ALTIMARI, Circuit Judge:

The National Railroad Passenger Corporation ("the Railroad") appeals from an order of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, refusing to grant a new trial due to excessiveness of the jury verdict in a case brought under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. ยง 51 et seq. The plaintiff, Richard Nairn ("Nairn"), suffered a permanent back injury while performing his job as a construction foreman, which he alleged was caused by the Railroad's negligence. The jury found in favor of Nairn and awarded him damages in the amount of $765,000. After a careful review of the evidence in this case, we conclude that this is one of those rare instances where the jury's verdict was excessive as a matter of law. Accordingly, we vacate the judgment and remand for a new trial on the issue of damages.


At the time of his injury, Nairn was employed by the Railroad as foreman of a construction and repair crew in New Haven, Connecticut. He was 33 years old and married with four children. On the morning of December 26, 1984, Nairn injured his back while attempting to lift a piece of heavy equipment which had become embedded in ice. Nairn continued working that day, but when the pain did not subside, he went to the emergency room of a local hospital. He was advised to go home and rest, and to consult an orthopedic specialist if the pain persisted.

Nairn continued to experience pain, and on January 7, 1985, Nairn had the first of a series of appointments with Dr. DePonte, his family's orthopedic surgeon. Dr. DePonte ordered several tests to be performed, including x-rays, a CAT scan, and a myelogram; all the results were normal. Nairn attempted to return to work one day during January, but after driving in a truck for a couple of hours, was in so much pain that he had to return home.

In March 1985, Nairn consulted a neurologist, Dr. Robinson, who diagnosed Nairn as having a "musculoligamentous strain" and advised him to return to work. Nairn worked from mid-March until the end of June 1985, although his back pain persisted. On June 28, 1985, Nairn re-injured his back while shoveling wet sand at a construction site. After this he quit working once again. In July 1985, Nairn visited Dr. Robinson, who suggested that Nairn undergo a Magnetic Resonance Image ("MRI") test. The MRI results showed a "slight decrease in signal at the L5-S1 disc space," the first positive test finding since Nairn's original injury. Dr. Robinson interpreted the MRI results as evidence of mild disc degeneration.

Nairn then began a course of physical therapy, but discontinued it when he failed to improve. In the fall of 1985, Dr. DePonte advised Nairn that he had a permanent partial disability and would be unable to return to his former job with the Railroad. Dr. DePonte assessed Nairn as having a permanent back function impairment of 15 % .

Once Nairn learned that his disability was permanent, he began to contemplate litigation against the Railroad. He commenced the instant FELA action in October 1985, seeking one million dollars in damages. On the advice of his attorney, he consulted Dr. Taub, a specialist in chronic pain, on February 3, 1986. Dr. Taub studied the results of the MRI test and concluded that there was "moderate-to-marked" dessication of the intervertebral disc space at the L5-S1 level. Dr. Taub diagnosed Nairn as having suffered a "lumbosacral sprain productive of intervertebral disc derangement." Dr. Taub agreed with Dr. DePonte's assessment of a 15 % permanent back impairment, and suggested that Nairn seek employment at the "medium duty" level, which would entail lifting no more than 50 pounds.

In February 1986, one of Nairn's friends offered him a general maintenance position at an apartment complex. Nairn accepted this position, where he worked as an independent contractor and was able to set his own hours. At the time of trial, Nairn was working approximately 32-40 hours per week at a salary of $10.25 per hour, with no benefits. Nairn's salary at the Railroad had been I $11.85 per hour with very good benefits.

In May 1986, Nairn visited Dr. Taub again, after tripping in a parking lot. At that time, Dr. Taub advised Nairn to restrict his employment to "light duty" work. Nairn's job at the apartment complex was consistent with this recommendation.

Nairn's suit against the Railroad was tried before a jury on February 10 through 13, 1987. Dr. Taub testified as Nairn's medical expert, summarizing Nairn's medical history following the injury. Dr. Goodman, testifying as the Railroad's medical expert, concluded that Nairn had only a 5 % functional impairment. Various Railroad employees testified about the condition of the construction yard where Nairn was injured. Nairn himself testified as to the circumstances of his injury, his course of medical treatment, and the restrictions on his activities which he was forced to endure as a result of his partial disability.

The jury found that the Railroad was negligent in maintaining its equipment storage yard and that this negligence caused Nairn's injury. The jury returned a verdict in favor of Nairn in the amount of $765,000. The Railroad moved for a new trial on several grounds, including ...

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